Hello all, I am a long time member of this forum and am seeking some advice/opinions. My wife and I just had a baby on December 13th. She is out on FMLA. The company she works for just sold her store to a franchisee and elminated her position. She had actually been requesting a transfer to another store closer to home for over a year and has been being assured that they have a "plan for her". Does she have any recourse against the company for wrongful termination? Any thoughts or opinions would be very much appreciated.
Contact a lawyer. The first discussion is free and a lawyer would be in a better position to answer than the folks here.
Well, the problem is that the company that made the contract with her is no longer in business. Patrick's advise about a lawyer is good, but my gut feeling (and I'm no lawyer by far) is that you don't have a case because of the change in companies.
The company did not go out of business. It is a restaurant chain. They recently reorganized, filed chapter 11 over the summer, closed 66 restaurants (not hers), and then as of 1/2/11 sold three of the stores as franchises to her former regional manager. No warning, no offer of transfer, no severance. Technically, she can't apply for unemployment because she is not physically able to work. All benefits cut as of 1/2/11. She still has 4-6 weeks of leave available to her. They even cancelled her company provided temporary disability insurance. We have been in contact with a lawyer, I'm just looking for any opinions or advice I can get. I find it to be at the very least sleazy to fire an employee out on maternity leave without warning and not to at least offer some kind of severance. She had worked for the company in some capacity for the last 15 years and had been a general manager for her restaurant for the last 5 years.
The problem is going to be that her termination was not caused by the leave. Whether she was on leave or not, her position would have been eliminated. If she was not on leave, she would have no case for wrongful termination, therefore her being on leave does not change that.
Exactly...her position wasn't eliminated...her store was sold...as a franchise. They didn't even offer her severance. We're still waiting I'm paperwork from the company.
Her position wasn't eliminated company wide, though. The store she managed was franchised to her former regional director. Combined with the fact that she had been seeking a transfer for over a year, I feel like being on fmla requires them to hold a place for her/offer a transfer, no?
Every single other employee was offered a position with the new owner...most of them weren't even told they were fired.
then it looks like she has more of a case with the new owner. he/she bought the employees too, along with ones on 'comp or leave for whatever reason. do let us know how this all plays out?
She was also offered a six week severance package a week after she was let go. Seems to me that is the corporate office trying to cover their buttafter the facts . I'll keep you all posted as it develops.
Hello Homer, I am not a lawyer and this is not legal advice, but rather from my own experience dealing with FMLA. FMLA is intended to ensure that people cannot be fired because of an illness or disability, whether it is their own or a dependent. It doesn't necessarily guarantee pay while the person is absent, unless that is stated in the work agreement. I would also recommend that you see a lawyer, they would probably be able to give you a better idea of any actions you can take in regards to this termination. JJ
It doesn't matter if it was eliminated company wide. Her position - "Asst. Manager at location 123" or whatever - was eliminated, due to reasons which have nothing to do with her leave. If the company can show that her position would have been eliminated whether she was on leave or not, you have no case.
That's the impression I got from my initial research into it, but I guess there's a potential wrongful termination case outside of the FMLA issue as well. I'll keep you posted. I certainly appreciate any opinions/advice available.
Unless she had an employment contract which dictated her allowable firing conditions, there's no such thing as wrongful termination. If I came in to work this morning and my boss didn't like the color of my shirt, he could say, "I don't like your shirt. You're fired." At-will employment.
